Citation: R v Lelikan [2018] NSWSC 1933
Court: Supreme Court of New South Wales
Date: 17 October 2018
Judge(s): McCallum J
Background
The accused faced a single charge of engaging in a hostile activity in a foreign state, contrary to s 6(1)(b) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The Crown alleged that during 2012 he was present in southern Turkey and northern Iraq, wore military uniform and insignia of the PKK and/or HPG, carried firearms, ammunition and grenades, and accompanied others in those organisations. The accused did not contest his presence in the region or that he was armed and with fighters; the central issue was whether the Crown could prove he personally intended to engage in hostile acts.
The accused is of Kurdish ethnicity, born in Turkey, who had been granted Australian protection as a refugee and obtained citizenship in 2003. He later travelled to Europe, was arrested in France in 2007 in circumstances apparently related to PKK affiliation, had his Australian passport confiscated by French authorities, and eventually left France using a relative's passport to travel to a refugee camp in Iraq.
Two distinct procedural rulings arose during the trial: a disputed tender of documents relating to the accused's departure from France while on bail there, and a question about whether the accused could sit on the floor of the court rather than in the dock.
Legal Issues
- Whether correspondence between the accused and the Australian Embassy in Baghdad, revealing that he had fled France in breach of bail conditions, was admissible as evidence at trial
- Whether, under s 137 of the Evidence Act 1995 (NSW), the probative value of that material was outweighed by the danger of unfair prejudice to the accused
- Whether s 34 of the Criminal Procedure Act 1986 (NSW) confers an unfettered discretion on a trial judge as to where an accused person is seated, or whether an accused must instead establish something "exceptional" to depart from a supposed default position of sitting in the dock
Decision
Exclusion of the French bail documents: The Crown sought to tender email correspondence (MFI 10) in which the accused himself described using a relative's passport to leave France and travel to Iraq in 2011, in breach of bail conditions requiring him to remain in Paris and report daily. The Crown's purpose was to rebut a suggestion in defence counsel's opening address that the accused left France because of fear of deportation to Turkey, arguing instead that the more likely inference was that he fled to become a fighter.
McCallum J rejected the tender. Even accepting some scant relevance to the accused's intentions when leaving France and when in Iraq, her Honour concluded the material was so prejudicial that s 137 of the Evidence Act required its exclusion. The prejudice lay primarily in the tendency of the documents to establish that the accused had breached bail and fled criminal proceedings in France. That finding would also drag in a series of distracting subsidiary issues, including France's political environment, its relationship with Turkey, the nature of the French charge, and the likelihood of conviction and deportation, none of which were part of the relatively narrow issues in the present trial.
Dock placement: McCallum J had permitted the accused, who was on bail, to sit behind his barrister on the floor of the court rather than in the dock, noting in part the physically inconvenient layout of the dock in Court 5.8 at the Downing Centre. The Crown had not objected. Her Honour then addressed a recently published judgment of Button J in R v Stephen (No 2) [2018] NSWSC 167, in which a different approach had been taken.
McCallum J expressed respectful disagreement with what she understood to be the principle applied in that earlier decision. Section 34 of the Criminal Procedure Act 1986 (NSW) confers an express discretion on a trial judge to order the accused into the dock or allow the accused to remain on the floor of the court and to sit down. Her Honour held that this provision displaces any supposed "usual approach" requiring dock placement, and that it does not impose on an accused any burden to establish "a need to depart" from such an approach or to show something "exceptional" about their trial. The discretion is unfettered, and the judge exercises it as considered appropriate in the circumstances.
Orders Made
No orders were made in this decision.
Key Takeaways
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Under s 137 of the Evidence Act 1995 (NSW), a court may exclude evidence with only scant probative value where its admission would cause unfair prejudice, particularly where it would introduce collateral issues likely to distract from the central issues at trial.
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Evidence that an accused breached bail conditions in a foreign country carries inherent prejudicial potential that can outweigh its probative value, especially where the inferences the Crown seeks to draw from it rest on contestable premises.
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Section 34 of the Criminal Procedure Act 1986 (NSW) confers an unfettered discretion on a trial judge to determine whether an accused person sits in the dock or on the floor of the court. McCallum J held that the provision displaces any supposed default requirement for dock placement.
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An accused person does not bear any onus of demonstrating "exceptional" circumstances or a "need to depart from the usual approach" before a trial judge may permit them to sit outside the dock. The discretion belongs to the judge and is exercised according to what the judge considers appropriate.
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McCallum J noted her disagreement with the approach stated in R v Stephen (No 2) [2018] NSWSC 167 as a matter of principle, while accepting that the outcome in that case was not necessarily beyond the scope of the discretion.
Legislation and Cases Referenced
Legislation:
- Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 6(1)(a), 6(1)(b)
- Evidence Act 1995 (NSW), s 137
- Criminal Procedure Act 1986 (NSW), s 34
Cases:
- R v Stephen (No 2) [2018] NSWSC 167 (Button J)